Murderer Executed in Arizona

The State of Arizona executed Jeffrey Landrigan late Tuesday night after the Supreme Court lifted a lower court’s injunction blocking the lethal injection.

Last-minute appeals for Mr. Landrigan, convicted of murder in 1990, focused on the origins of one of the drugs used in the state’s three-drug execution protocol.

Shortages of barbiturates used in executions has led to delays in several states. The only domestic manufacturer approved by the Food and Drug Administration to make sodium thiopental, the barbiturate used in Arizona, is Hospira Inc; it suspended production of the drug a year ago because of supply issues, and is expected to be producing it again in the first quarter of next year.

With no supplies coming from sources approved by the F.D.A., Judge Roslyn O. Silver of Federal District Court had demanded that the state provide information about the origins of Arizona’s drug in order to know whether there were risks of impurity or efficacy that could violate Mr. Landrigan’s rights under the Eighth Amendment barring cruel and unusual punishment.

The state refused to detail the origins of the drug or the process used to obtain it in open court, citing the state’s confidentiality laws, though officials said it had come from England. Thus “the court is left to speculate,” Judge Silver wrote, “whether the non-F.D.A. approved drug will cause pain and suffering.”

A three-judge panel of the Court of Appeals for the Ninth Circuit upheld the order, stating that the state should provide a full accounting. “Because we do not know what was before the district court due to the state’s failure to provide the materials, we cannot say the district court abused its discretion in granting a temporary stay,” the judges wrote on Tuesday. Later in the day, the full Ninth Circuit refused to rehear the case, resulting in the state appealing to the Supreme Court.

In a one-page order issued Tuesday night explaining the 5-to-4 vote to vacate Judge Silver’s temporary restraining order, the Supreme Court stated that Judge Silver’s reasoning was flawed, because the case affirming the constitutionality of the three-drug execution method, Baze v. Rees, had a high standard of proof that an execution method would cause harm.

The court stated that “speculation cannot substitute for evidence that the use of the drug is ‘sure or very likely to cause serious illness and needless suffering,’” citing the decision in Baze v. Rees. and the court added, “There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect.”

The five justices who voted for lifting the stay were Chief Justice John G. Roberts Jr.; Antonin Scalia; Clarence Thomas; Samuel Alito; and Anthony M. Kennedy. The four justices who voted to uphold Judge Silver’s stay were Ruth Bader Ginsburg; Stephen G. Breyer; Sonia Sotomayor; and Elena Kagan, her first publicly released vote. They did not issue an opinion.

Eric M. Freedman, a law professor at Hofstra University, said that the lesson of the Supreme Court’s ruling in the Landrigan case was “crime pays.”

He explained: “The state flatly stonewalled the lower courts by defying orders to produce information, and then was rewarded at the Supreme Court by winning its case on the basis that the defendant had not put forward enough evidence. That is an outcome which turns simple justice upside-down and a victory that the state should be ashamed to have obtained.”

Proponents of the death penalty saw the outcome, instead, as a victory for the rule of law. Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victims’ rights group, wrote on the group’s blog that the case draws a bright line for other attempts to stay executions, and singled out a procedural stay in California, where Judge Jeremy Fogel of Federal District Court has delayed the execution of Albert Greenwood Brown Jr. over questions concerning the state’s drug protocols.

“Judge Fogel now has a clear directive from the high court that unless the new California protocol fails this ’sure or very likely’ standard, he should allow executions to proceed,” Mr. Scheidegger wrote. “The protocol surely passes.”

In an interview, Mr. Scheidegger said, “The Supreme Court told the Ninth Circuit and the District Court that they had applied too loose a standard in granting a stay.” The new decision, he said, “sends a message” that “speculation about problems with the source is not sufficient to stay an execution.”

Ty Alper, the associate director of the death penalty clinic at the University of California, Berkeley, said that the Supreme Court’s decision did not end the story, arguing that “it explicitly leaves the door open for a challenge in a case where petitioners can show that the drug was unlawfully obtained.”

The fact that the F.D.A. has not approved foreign sources of sodium thiopental, he said, suggested that “it’s very likely that a petitioner will be able to make this showing in a case where there is more time to litigate the issue than there was in the Arizona case.”

With the stay in Arizona lifted, Mr. Landrigan was executed at 10:26 p.m. local time.

Mr. Landrigan murdered Chester Dyer in 1989 in Phoenix, after having escaped from an Oklahoma prison where he was being held on another murder conviction.

According to The Arizona Republic, Mr. Landrigan offered his last words in a strong voice and a heavy accent from his native Oklahoma.

“Well, I’d like to say thank you to my family for being here and all my friends,” he said, “and Boomer Sooner.”

The Sooners is the team nickname at the University of Oklahoma.

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